HAJI HASSAN CHIMBO v MSHIBE IDDI RAMADHANI 1996 TLR 292 (HC)

 

HAJI HASSAN CHIMBO v MSHIBE IDDI RAMADHANI 1996 TLR 292 (HC)

Court High Court of Zanzibar - Vuga

Judge Kannonyele J

E

CIVIL APPEAL NO 30 OF 1995 F

22 December 1995

Flynote

Contract - Implied terms of contract - Sale Agreement not stating time for payment to

be made - Reasonable time is implied

Contract - Delay in performance of contract - Inordinate delay in making payment -

Payee may rescind contract G

-Headnote

Under a written agreement for the sale of a hut at a price of Shs. 40,000/=, the

plaintiff made an advance payment of Shs. 20,000/=. Two years later the balance

remained unpaid. The defendant then decided to rescind the contract and refund the

advance H payment back to the plaintiff. The agreement did not state the time in

which payment had to be made.

Held:

(i) A delay of two years for the payment of only Shs. 20,000/= is an

unreasonably frustrating delay in circumstances where even small children talk of

business worth a lot of money;

I (ii) The plaintiff was unreasonably late to complete his payment, entitling

the defendant to rescind the contract.

1996 TLR p293

Case Information

Appeal dismissed. A

Cases referred to:

1. British & Commonwealth Holdings Plc v Quadrex holdings Inc. [1989]

QB 842; [1989] 3 All ER 492.

2. Caltex (India) Ltd v Bhaghwan Devi Marodia [1969] 25 CR 238; AIR

[1969] SC 405; [1969] 1 SCJ 783. B

3. Universal Cargo Carriers Corp v Citati [1957] 2 QB 401; [1957] 2 All ER

70.

[zJDz]Judgment

Kannonyele J: C

The plaintiff entered into a written sale agreement with the defendant for the

purchase of a hut at an agreed price of Shs 40,000/=. He, the plaintiff, paid the

defendant Shs 20,000/= advance towards the agreed price of Shs 40,000/=. No time

was fixed for final payment of the balance. Also no date is indicated in the sale

agreement as to when the D same was made. In the written statement of defence,

however, the defendant said the sale was in 1991 and her evidence at the trial, she

said the sale was in 1990.

The contractual relations were strained following the plaintiff's delay in paying the

defendant the balance of Shs 20,000/= as had been agreed between them. Despite E

demands through agents, the plaintiff had not yet paid the balance by early 1993. The

defendant herself approached the plaintiff to press her demands for the balance

payment in the said early 1993. The plaintiff offered Shs 15,000/= which the

defendant F refused insisting for full payment of the balance. Plaintiff would not pay

it whereupon the defendant concedes (in her evidence at the trial) to have remarked

that because of his delay, the plaintiff would now have to pay Shs 10,000/= more over

and above the agreed sum of Shs 20,000/=. The plaintiff had not yet paid the amount

by early 1993. The G defendant complained to the `Shekha' at Mwanakwerekwe. It

was there revealed that the defendant had now decided to rescind the contract upon

refund of the plaintiff's Shs 20,000/= advance payment. Plaintiff refused to receive the

refunded money insisting for full performance of the contract. She instituted the case

in April 1994. H

The defendant won the suit before the court of first instance where it was held that

she was entitled to rescind the contract under the principle of unreasonable delay.

She was required to refund the Shs 20,000/= earlier advanced to her. This judgment of

the I primary court was reversed on appeal by the plaintiff to the district court. The

latter held that the plaintiff was entitled to claim for perfor-

1996 TLR p294

KANNONYELE J

mance on account of the renewed terms in early 1993-a reference to the Shs 10,000/=

A additional demand at that juncture (supra). On a further appeal to the resident

magistrate's court by the defendant, however, judgment of the primary court was

restored. Still aggrieved, the plaintiff is now appealing to this court. The plaintiff's

seven grounds of appeal may be summarised into three namely: B

1. That the resident magistrate erred for not taking into account the fact

that the defendant had earlier refused Shs 15,000/= as part payment of the balance Shs

20,000/=.

C 2. That the resident magistrate erred in failing to take into account the

fact that for two years the defendant was away to the rural areas without prior

arrangements for payment through an agent hand, inapplicability of the principle of

unreasonable delay, and

D 3. That it was in fact the defendant who is in fact guilty for breach of the

contract.

There is no dispute as to formation of a contract between the parties in this case.

Rather, it is what transcends after the formation of such contract. And precisely it is a

E question whether there was frustrating delay by the guilty party herein to perform

his part of the bargain. On my part, I subscribe to the view held by the trial court and

the second appellate court that the delay of over two years for the payment of Shs

20,000/= only under the present economy was unreasonably frustrating and,

therefore, that the F defendant was entitled to rescind the contract under the

circumstances. After a delay of over two years, I think the defendant was entitled to

refuse receipt of Shs 15,000/= in early 1993 which amount was less than the agreed

sum. And when the plaintiff was still G not able to pay the contractual balance even

a year later (in early 1994), I think the defendant was entitled to rescind the contract

under the circumstances. Defendant's alleged absence to the rural areas could not

have been a sufficient licence to non-payment or delayed payment where the

defendant was sending her agent to receive H the amount due. As a defensive

gesture, the plaintiff should have paid the claimed amount to the agent and then it

would have been up to the defendant and her agent to sort their affairs assuming that

the agent were to misappropriate the amount.

Regard is being had of the fact that in a contract for the sale of land or immovable I

property as the case was here it would normally be presumed that time was not the

essence of the contract. Indeed

1996 TLR p295

this is the more likely in this case where no reference at all was given to time, neither

A time for entering into the agreement nor that intended for final performance.

However, as already pointed out, a delay of over two years for the payment of Shs

20,000/= only is considered as unreasonably frustrating delay under the present

economic situations B where even small children talk of business in terms of

millions of shillings. True, the guilty party must not merely be late but be

unreasonably so (British & Commonwealth Holdings Plc v Quadrex Holdings Inc (1)).

I accede to the view held by the trial court and the resident magistrate's court that the

plaintiff was unreasonably late here in completing C his part of the bargain and the

defendant was entitled to rescission of the contract after so much of the delay. Equity

will not relieve a party the consequences of his own neglect (Caltex (India) Ltd v

Bhaghwan Devi Marodia (2)).

I am satisfied that despite the practical problem which normally arises where time is

not D originally intended to be the essence of the contract and yet one party

becomes guilty of delay, this is a suitable case in which to apply the principle in

Universal Cargo Carriers Corp v Citati (3) that where time is not of the essence, late

performance will be ground for termination of the contract where it (ie the time)

causes frustrating delay. E This, I think, should suffice to dispose of all the grounds

of appeal lodged in this case.

This appeal is therefore dismissed in toto.

Appellant to have his costs in this court and in the courts below. F

1996 TLR p295

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